According to PhilStar, in an 8-5 vote, the Philippine Supreme Court issued a temporary restraining order (TRO) against the implementation of the Department of Justice’s (DOJ) watchlist order (WLO) against former President and current Pampanga Representative Gloria Macapagal-Arroyo. As I mentioned last week, cynics might suspect the justices of simply protecting their patron. However, freedom travel is an human right protected by the International Covenant for Civil and Political Rights (remember the refusniks in the former U.S.S.R.).
For politicians, this dual nature of the justice system presents a delightful irony. The very way courts act to protect former political leaders necessitates their invoking constitutional rights. Thus, the very political leaders who often violated their citizens’ human rights become amongst the first to hide behind them when out of power. In political science, we’d call this a severe case of observational equivalence – when we can’t tell whether the court is acting in good faith or with political motives.
Jodi Finkel’s Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s (ND Kellogg Inst Int’l Studies) essentially expands upon the rational-strategic argument of judicial empowerment presented by Ran Hirscl and Tom Ginsburg, with Latin American case studies. Finkel’s study takes the argument one step further by differentiating between initiation and implementation of judicial reforms. The former costs political leaders little, while the latter could end up empowering courts to rule against the regime. It is only when the political elite fears losing power that they actually implement judicial reforms.
Finkel’s case studies demonstrate her thesis very well. However, in some aspects the book just wasn’t thorough enough. For example, she did not discuss standing or access to the courts as a variable. Also, I wasn’t fully convinced by her rejection of economic factors. I would like to have seen discussion of how dependent each country was on FDI, for example. Finally, even though the book was published in 2008, she seems to ignore much of the literature on this subject between 2001-2008, including Ginsburg’s Judicial Review in New Democracies: Constitutional Courts in Asian Cases.
Nonetheless, Finkel makes an important distinction in separating proposals for legal reforms and actual substantive implementation. It’s a distinction I’d love to see tested somewhere.